State of rape cases in India
The rape is the most heinous crime in India. In 2019 A total of 45,485 cases of crime against women were registered out of which (7.3%) were ‘Rape’. According to a report released by NCRB in 2019 around 87 rapes were reported daily. This means 1 rape every 15 minutes. The number of crimes against women and specifically rape is on rise. A total of 45,485 cases of crime against women were registered during 2019, showing an increase of 7.8% over 2018 (42,180 cases). The conviction rate in rape cases is lamentably low at 27.2 per cent. The huge pendency and low conviction rate seem to define the status of crimes against women in the country.
Introduction to the case
The case, which is discussed here pertains to Union Territory, Chandigarh v. Amit Kumar @Rachu & Others, where the High Court has delivered a flawed judgement.
In a ruling in Union Territory, Chandigarh v. Amit Kumar @Rachu & Others , the High Court of Punjab and Haryana made a bizarre statement by declining to issue Leave to Appeal against an acquittal in a rape case. The Constitution of India under Article 136 vests the Supreme Court of India, the apex court of the country, with a special power to grant special leave, to appeal against any judgment or order or decree in any matter or cause, passed or made by any Court/tribunal in the territory of India. It is to be used in case any substantial constitutional question of law is involved, or gross injustice has been done.
It was noted in the Medical examination that there existed no bodily injury on any part of the prosecutrix. To which the medical expert also testified. Thereby, they concluded that she was a consenting party to the sexual intercourse.
Similar Cases and their Judgements
This is not the first case where absence of injury has been ascribed to no offense of rape. The judgement is in deviation with the Apex Court’s established stand in In Vijay @ Chinee v. State of Madhya Pradesh. The court in this judgement ruled that the rape sufferer should not be viewed as accomplices. Furthermore, the statements of the person in question , if judged to be credible and truthful, does not need confirmation. The offender may be charged based solely on the sufferer’s statements
In the case of Rajinder @ Raju vs State Of H.P the rationale put behind the judgement was, an accused can be convicted of rape as absence of injuries cannot be inferred as evidence of consent.
The Apex Court overturned the Allahabad High Court’s decision held in State Of U.P vs Chhoteylal. According to the Allahabad court, hardly any internal or external injuries were identified on the sufferer, also she indulged in sex often. As a result, the suspect was exonerated of rape allegations. It is unwise to Imply that any unconsented intercourse with woman would result in harm to the victims exterior or vital organs. The absence of lesions on the prosecutrix’s body does not refute her proof.
In Dastagir Sab and Anr v. State of Karnataka, it was decided that impairment to the sufferer’s internal or external organs is not a necessary condition for proving a rape allegation. The absence of injuries is not the only condition for determining the occurrence of the crime.
In the case Wahid Khan vs. State of M.P, the Supreme Court made reference to Medical Jurisprudence and Toxicology postulating that sexual intercourse is the slight penetration of the vulva by the penis, with or without semen emission. Therefore, it can be inferred that rape maybe committed without any injury to the body. Also, in Balwant Singh And Ors. vs State Of Punjab the observation was made regarding the contention that the absence of any damage on the prosecutrix’s back or any other part of her body invalidates the appellants’ rape claim against her. This was since the prosecutrix was anticipated to defend themselves, implying and resulting in some harm on her body, notably behind. The judgement ruled that this claim lacks validity. As a result, the court was of the understanding that whenever there is resistance, injury is not compulsory. Thusly, it can be understood that the accused under the offence of rape where no injuries were visible can be convicted of rape, as absence of injury does not imply consent.
Section 114A of the Evidence Act also draws significance to the context. Accordingly, if the act of sexual intercourse is proven and the question arises if the act was without the consent of the victim. If the woman indicates in her testimony before the Court that she didn’t give consent, the Court will presume that there existed no consent.
What does consent really mean
A few American decisions wherein the word `consent’ has been considered and explained with regard to the law of rape have been referred. One such case is ” People v. McIlvain”.
“In order to establish “rape,” there should not be a complete struggle and the victim who is raped might not oppose to the extent of being beaten into immobility, and if she refuses to a point where her objection is rendered ineffective, or until her obstruction is crushed this resulting surrender is not “consent.”
The Justice Verma committee was formed for enlarging the scope of the rape laws. It helped in formulation of the Criminal amendment act 2013, where ‘consent’, is defined as “an unequivocal agreement to engage in a particular sexual act; clarifying further, that the absence of resistance will not imply consent.
The committee modified the existing laws pertaining to sexual offences. Previously the section provided for “against her will” which was very vague and absence or presence of injury has no relevance to whether or not a woman consents to sexual intercourse. It defines consent as an unequivocal agreement to engage in a sexual act and absence of resistance will not be treated as consent. Further, The Committee recommended that the exception to marital rape should be removed. Marriage should not be considered as an irrevocable consent to sexual act
It is not essential for there to be total insertion of the penis with the release of fluid and disrupting the hymen to establish rape. Penetration, however slight, is sufficient. It has also been a view of the court in Rafiq v. State of U.P only perforation of the penis into the labia majora, vulva, or pudenda, with or without the discharge of fluid, is sufficient to establish rape in the eyes of the law. Given the criteria of the offence, it is extremely likely that the offence was performed, and no bruises inflicted. Also, it is critical to recognise that it isn’t generally possible for the sufferer to demonstrate defiance. It cannot be said that if they would have resisted, consequences would always be injuries. In this case the court relied more on medical examination rather focusing on consent. The fact that she was involved in sexual intercourse, showed no resistance or had no injuries does not imply she had gave consent to the act.
Whenever a rape victim or an offender is taken to a doctor, only medical evidence necessary for investigation is gathered. The most specialists are unaware that the medication of concealed injuries such as the traumatised state of the victim also injuries which are result of the rape but not visible explicitly, prevention for and diagnosis of sexual diseases, contraceptive guidance, and psychiatric evaluation and therapy are all elements of their professional responsibilities, in addition to evidence acquisition and just medical evaluation of the sufferer or suspect’s body. Need of the hour is specific legislation in this area, which sets guidelines about examination of the rape victim and letting the honourable court decide whether resistance was offered or not than just observing the explicit injuries on the bodies.
Rape is a heinous crime that has severe psychological impact on the person. It is anything but an offence that tests the woman’s poise and leaves a deep scar on their identity that they begin to feel disdainful and hateful of their own bodies. In the flawed order passed by the respected High Court, nucleus of the decision was absence of injury which means absence of resistance and connotes presence of consent. Thus, the court acquitted all the accused of the charges of rape.
In all the judgements Rajinder @ Raju vs State Of H.P, State Of U.P vs Chhoteylal, Dastagir Sab and Anr v. State of Karnataka, Wahid Khan vs. State of M.P, and Balwant Singh And Ors. vs State Of Punjab ,used the primary argument was that Injury on the body of the person of the victim is not a sine qua non to prove a charge of rape. Slight penetration of penis into the vulva will be termed as sexual intercourse. There is no straight jacket formula that if there are no injuries on the back or body of the offender there was no rape . Lastly, absence of injury cannot be the primary criteria for coming to a conclusion that no such offence had occurred.
If assumed that absence of injury means consent, then the heinous act of rape will never be proved because the judicial system itself has given a key to escape the charges.
Samarth Garg, student at Maharashtra National Law University, Mumbai.